Practice of Law

Yesterday, I had the pleasure of serving as a moderator at a CLE event in Nashville focused on developments in the world of consumer-facing legal services providers. There are a world of companies – predominantly existing only online — that have an increasing presence in the lives of people in need of legal services and answers to their legal questions who, often otherwise, would not reach out directly to a lawyer to try to obtain help for their problems.

The full event was a 3 hour long seminar covering several topics, but the panel I moderated encompassed an hour of conversation with Bob Aicher of ZeekBeek, Matt Horn from Legal Services Link, and Dan Lear from Avvo.

Now, if you are reading this, you’re likely already familiar with the various aspects of Avvo’s footprint in the marketplace. You may not know as much, however, about ZeekBeek or Legal Services Link.

In some ways, they do quite similar things but the approach is different. Both operate as an online platform through which people in need of legal services can connect with lawyers who are willing to provide services. ZeekBeek partners exclusively with state bar associations and, thus, in those states comes across as an entity that has the imprimatur of the state regulatory body and also — for a fee — provides its participating lawyers within a state a different platform for making referrals of work to other lawyers. Legal Services Link monetizes its provision of a market place for consumers to ask questions and obtain legal advice and representation from participating lawyers by allowing lawyers to view questions for free but requiring lawyers who want to interact with the consumer by replying and answering their inquiries to pay an annual membership fee for that privilege.

While each of the three representatives had differing views on the topic of whether they versus those they compete with are able to do what they do in a way that the participating lawyers can be assured of compliance with the ethics rules, it was very interesting (though not surprising) to hear all three of them agree that the ethics rules that relate to their services are desperately in need of change.

It was a very interesting and engaging discussion. The good news for you, if you are interested in checking it out, is that you can view the entire program by registering/purchasing it at this link from the TBA. (As of now there is no way to just pay for the middle hour which was the program I moderated, but should that change I will update this post.)

Now two things worth saying by way of preface, I guess, before further explanation.

First, I’ve dealt with my share of problematic lawyers over the years (so too probably have you), including the type that doesn’t know when to say when, so the subject of this post could theoretically be about lots of lawyers but it happens to be about a lawyer I have certainly never met before. He is (in)famous though and if you’d like to know more about his background than just what you can glean from the scathing opinion of the Ninth Circuit we’re about to discuss, you could try his Wikipedia page.

Second, I’ve never been denied pro hac vice admission before so I can’t definitively say it would be easy for me to live with such an outcome. It’s the kind of thing you have to disclose on all sorts of forms for the rest of your legal career, but I’d like to think that I’d navigate the situation better than the story about to be told.

With that out of the way, attorney Larry Klayman, having already been denied pro hac vice admission in federal district court in Nevada and having already unsuccessfully appealed that ruling to the Ninth Circuit (840 F.3d 1034 (9th Cir. 2016)) and having unsuccessfully asked the U.S. Supreme Court to weigh in, is back in the limelight with a new ruling from the Ninth Circuit on March 30, 2017, denying his “emergency” petition for a writ of mandamus to be permitted to represent Cliven Bundy, a pretty infamous character himself.

Literally, one week after the Supreme Court opted not to hear him, Mr. Klayman filed an emergency writ – ostensibly contending that he was speaking for Bundy — saying there were “fundamentally changed circumstances that underscore [his] compelling need to have a full legal defense team, including Klayman, ready and able to represent him at trial.” The first part of how irregular this would be is immediately explained by the Ninth Circuit as follows:

First, Klayman purports to be representing Bundy in his request for a writ of mandamus, Bundy has counsel of record, Nevada attorney, Bret O. Whipple. Whipple, however, did not sign the motion, file an affidavit, or otherwise join in any way Bundy’s latest motion. Indeed, Bundy, in his reply filed on March 23, explains that his current attorney refused to file a new pro hac vice application on behalf of Klayman because Whipple did not want to “tarnish his reputation.”

That’s kind of a record-scratch moment for most attorneys. If your local counsel believes that participating in your efforts would tarnish their reputation . . . well, some soul-searching would seem to be in order.

The Ninth Circuit pointed out an additional procedural problem with claiming that there were new emergency circumstances but not first going back to the district court thus recognizing that the writ of mandamus is effectively requesting relief because the district court did not sua sponte decide to change its mind on Klayman’s admission, but then quickly proceeds to the “merits” of the motion in a blistering example of laconic understatement:

So construing Bundy’s motion, and because the district court and government filed answers to the petition, we will proceed to the merits.

There are no merits.

I mean, ouch. Right? The Ninth Circuit did go forward though to explain in more detail that none of the three claims of supposed “changed circumstances,” were anything of the sort.

Along the way, the Ninth Circuit said a few further things that, I think, actually do justify focusing on this ruling as being something other than piling on the lawyer at the heart of it.

Among the reasons Klayman offered as being the emergency requiring mandamus was that Bundy’s existing Nevada counsel of record somehow did not have any federal trial experience. The short version of the Ninth Circuit’s rejoinder to that allegation was:

The assertions made by Bundy about his counsel are demonstrably false. Either Klayman has failed to ascertain the facts by, for example, talking with Whipple or looking at Whipple’s website, or he has deliberately misled this court. Neither option paints Klayman in a good light. At best, Klayman has shown such a casual acquaintance with the facts that he is guilty of at least gross negligence in his representation to this court.

The Ninth Circuit went on to explain succinctly, but positively, the extensive federal criminal experience of Mr. Whipple. In so doing, it dropped in a footnote one of the points that makes this whole endeavor worth writing about. A point that lawyers need to bear in mind when they think about the role of technological competence in their practice:

This court had little difficulty confirming most of these facts from Whipple’s website, his LinkedIn account, and PACER. . . .That Klayman, evidently, failed to use the most primitive modern tools to verify his serious accusations that counsel of record was not qualified is inexcusable.

When websites and LinkedIn accounts are referred to by a federal Court of Appeals as among “the most primitive modern tools,” lawyers need to take note about what that can mean for their practice in a variety of respects.

The second point that is worth noting over and above how it relates to Mr. Klayman himself is the interplay between the Sixth Amendment right to counsel and the ability to impose rules on pro hac vice admission. One member of the Ninth Circuit did dissent from this ruling, on the same grounds for dissent from the prior appeal of the pro hac vice denial – Bundy’s Sixth Amendment right to counsel. This point is addressed by the Ninth Circuit in a footnote as well and that seems hard to argue with:

We do not evaluate constitutional rights in a vacuum. Bundy may add whatever counsel he wishes so long as they satisfy Nevada’s minimal pro hac vice rules. Klayman has not satisfied those rules, so Bundy will have to look to other Nevada-qualified counsel to aid his defense.

So North Carolina has got quite a bit going on these days. Last night UNC won the NCAA Men’s Basketball championship. A few days ago, its general assembly kind of, sort of, repealed the bathroom bill that brought it much negative publicity and cost it some sporting events. And, in March 2017, it adopted a first-of-its-kind ethics rule that seeks to require all lawyers — not just prosecutors — to reveal any evidence of the innocence of someone that comes into their possession after the person has been convicted.

Tennessee, I am proud to say, is among the “Sweet Sixteen” of other states that have adopted the ABA Model Rule 3.8(g) and (h) language that imposes this kind of duty upon prosecutors, but North Carolina’s act of going further to say that all attorneys have this obligation — at a mandatory level and when not doing so could somehow lead to discipline — seems very misguided to me.

Now because this is being written on the Internet, and because taking things out of context and ascribing intents and beliefs not intended to things written on the Internet is pretty much a sporting event itself these days, I feel beholden to make the point that — obviously I am not in favor of anyone being convicted of a crime they didn’t commit and I very much count myself in the category of folks who agree with the “it’s better that 10 guilty people be set free than 1 innocent person be imprisoned” line of thinking. Also, I absolutely think that if an attorney comes across solid evidence that would indicate someone has been convicted of something they didn’t do, then an attorney ought to be encouraged to try to do something about that.

Nevertheless, I am not at all a fan of the idea of constructing an ethics rule that would require a lawyer to do so on pain of discipline. Not even in the abstract because the architecture of such a rule would have to weigh in the balance too many other ethical obligations a lawyer might have that would compete. I’m also not a fan of North Carolina’s specific effort to do so — North Carolina RPC 8.6 — which actually does attempt to balance those competing obligations and in so doing, I think, actually proves the inherent pointlessness of this line of proposed rulemaking.

(a) Subject to paragraph (b), when a lawyer knows of credible evidence or information, including evidence or information otherwise protected by Rule 1.6, that creates a reasonable likelihood that a defendant did not commit the offense for which the defendant was convicted, the lawyer shall promptly disclose that evidence or information to the prosecutorial authority for the jurisdiction in which the defendant was convicted and to North Carolina Office of Indigent Defense Services or, if appropriate, the federal public defender for the district of conviction.

So, as a starting point, this duty would override obligations of client confidentiality that would otherwise require a lawyer to remain quiet. But obviously that creates some problems. So, the next paragraph carves out exceptions to the obligation.

(2) disclosure would criminally implicate a current or former client or otherwise substantially prejudice a current or former client’s interests; or

(3) disclosure would violate the attorney-client privilege applicable to communications between the lawyer and a current or former client.

So, the exceptions still do not allow Rule 1.6 concerns to prevent disclosure (unless, I guess, breaching certain 1.6 client confidences would be considered “otherwise substantially prejudic[ing] a current… client’s interests”), but the exceptions to protect the subset of Rule 1.6 communications that would also be protected as attorney-client privilege and protect a lawyer in the event that complying with Rule 8.6(a) would require them to put one of their own clients or former clients in jeopardy of criminal prosecution. Thus, Rule 8.6(b) essentially makes certain that Rule 8.6(a) will not apply to the most reasonably likely scenarios in which any lawyer who isn’t a prosecutor is going to learn of information indicating that someone has been wrongfully convicted.

The next paragraph, for good measure, also provides the same kind of “good faith”/exercise of professional judgment safeguard in place for private lawyers that Rule 3.8 provides for prosecutors:

(c) A lawyer who in good faith concludes that information is not subject to disclosure under this rule does not violate the rule even if that conclusion is subsequently determined to be erroneous.

The final paragraph then proceeds to make clear that no duty to disclose arises when the lawyer knows that the right people essentially already know.

(d) This rule does not require disclosure if the lawyer knows an appropriate governmental authority, the convicted defendant, or the defendant’s lawyer already possesses the information.

So, in the end, and as Professor Bruce Green is quoted as saying in a few of the news articles about the development, “it carves out so much that it’s hard to known when it will apply.” I think that’s a kinder way of saying: Other than whatever encouraging effect it might have on some small set of lawyers who wouldn’t otherwise step up and do the right thing to let authorities know about something if doing so wouldn’t violate their duty to another client or former client, this rule is not really going to accomplish much and is probably largely unenforceable.

And while that encouraging effect might be a laudable goal, pursuing it through this kind of rule seems the wrong way to go about it. If you are truly going to insist on something like this in a jurisdiction, it would be better pursued as a purely aspirational rule. We already have one of those with respect to the obligation to do pro bono.

Selecting just the right item to write about is not easy. This is not going to be an instance of accomplishing it. This is going to be an instance of writing something just because I truly find the outcome astounding (or at least I found the outcome astounding when I first read a blurb about the situation, but now having read the full Court opinion I’m less astounded).

A little less than a week ago, the Wisconsin Supreme Court released an opinion in which it accepted a lawyer’s effort at consenting to the revocation of his law license. An outcome that is, as I understand Wisconsin procedure, technically not a disbarment, but also not quite the same thing as the surrender of a law license that we have here in Tennessee.

The headlines/blurbs I encountered as a first way of hearing about the story were of the Law360 variety — Atty’s Scanty Records Preclude Client Repayment, Court Says. The disheartening takeaway one gets from reading that story reporting on the opinion is that a lawyer got away with trust account malfeasance by failing to keep the records that would be necessary to prove up the wrongdoing. Knowing how tough disciplinary authorities can be on trust accounting violations, this was one where I had to find the time to read the actual opinion.

You can do so right here. If you want to do so right now, I’ll wait until you get back.

Ok. So now that you’ve read it too, what about the one client and his $1,500? The second part of the complaint/investigation?

Attorney Walsh agreed to represent O.B. in attempting to have his felony convictions expunged or to seek a pardon for those convictions. According to his fee agreement with O.B., Attorney Walsh accepted an advanced flat fee of $1,500 at or near the time of entering into the representation and deposited the advanced fee into his law firm’s business account. Attorney Walsh claimed to the [Office of Lawyer Regulation] that he had done work on O.B.’s behalf and was able to describe some of that work. According to the OLR’s summary Attorney Walsh promised O.B. in July 2015 that he would be following up on a lead that required research, but warned that O.B. would likely be out of luck if the research did not yield favorable results. Attorney Walsh, however, failed to communicate the results of his research to O.B. He then failed to provide O.B. with any of the notices that were required when an attorney placed an advanced fee into the attorney’s business account and utilized the alternative advanced fee procedure outlined in [a particular Wisconsin rule]. Indeed, Attorney Walsh failed to provide O.B. with a final accounting that showed how he had earned the $1,500 flat fee.

For a while I thought I could manage to work through the giant, headline-grabbing angle given that none of the clients associated with any of the things involving fluctuations in the bank records contend they are out money and since there weren’t sufficient records available to truly prove what was what, the Wisconsin disciplinary counsel opted not to seek restitution. so while not quite “no harm, no foul,” but “definitely a foul, and he’s offering to give up his license without a fight so we’ll just take it and be done with it.” Though it does appear that the lawyer first tried an approach that would be more like Tennessee’s law license surrender approach by first filing a petition for the voluntary resignation of his license. Like surrender here, the existence of a pending disciplinary investigation can thwart that in Wisconsin so he tacked to filing a petition for consensual revocation.

But, there was at least that one client standing right there in these proceedings saying that they were out $1,500 as a result of this character. How could the Wisconsin disciplinary counsel not pursue getting that person their money back? And how could the Wisconsin Supreme Court manage to shrug its shoulders at that outcome?

Similarly, given the lack of billing records, the [Office of Lawyer Regulation] cannot determine with any reasonable certainty that [the client] should receive a refund of any particular amount of his advanced fee from Attorney Walsh.

Talk about the opposite of a “tie goes to the runner,” kind of ruling.

Which leads me back full circle to being astounded at that outcome up Wisconsin-way. It’s an outcome that sends a really clear – but unfortunate – message to Wisconsin attorneys that are truly willing to just disregard obligations — make sure you don’t keep records as well.

In February 2017, more than a dozen law professors filed an ethics complaint against Kellyanne Conway, Counselor to the President, alleging that she violated the attorney ethics rules applicable in D.C. through several false public statement she made — most notably, her repetitive statements about a terrorist incident that never actually occurred – the “Bowling Green Massacre.” Now, many people were not aware of the fact that Ms. Conway is an attorney — she doesn’t work as an attorney in the present administration. (In fact, her D.C. law license is already administratively suspended.) The core rule that the professors contend Ms. Conway violated is Rule 8.4(c) which makes it a violation for a lawyer to “engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.”

Unlike many other ethics rules, Rule 8.4 does not contain language limiting its scope to when “representing a client.” While I am not a fan of Ms. Conway, I very much disagree with the notion that her public statements in her political role are the kind of conduct to which Rule 8.4(c) should be applied. A reporter with The Blaze was kind of enough to let me comment in an article about the ethics complaint against Conway where I elaborate more fully on why I disagreed. You can read the article with, including my extensive comments, here.

Now, I feel compelled in fairness, instead of just knocking something down the opinion of others, to try to offer a good example of lawyer conduct that I think would fit as a Rule 8.4(c) violation but that doesn’t involve representing a client.

So, let me try a scenario.

Say you are a lawyer, and you are undergoing a job interview. If you lie in response to questions that are important to whether or not you get the job, that would be fodder for a Rule 8.4(c) violation. Or, maybe to make the violation even more palpable (if not clearer), let’s say you are seeking a public job. Perhaps, a really high-profile one, involving the government. And you lie during your job interview or on the application you have to submit for the position as part of a background check. That would definitely trigger Rule 8.4(c) in my view.

Heck, while I am just freewheeling on this whole scenario, let’s really ramp up the stakes. Let’s go with an attorney position in the federal government where your appointment has to be confirmed by the U.S. Senate. And, let’s say you lie in response to written questions posed to you by a Senator or you give a false and misleading response to a Senator’s question during a confirmation hearing or, gosh, maybe you do even both of those things. That would definitely be a Rule 8.4(c) violation. And, given that there would be also be lying under oath involved and lying to Congress involved, Rule 8.4(b) would actually come into play as well. That’s the rule that prohibits a lawyer from “commit[ting] a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects.”

So, yes, that would to me be a very solid foundation for multiple Rule 8.4 violations. And, in my scenario, the lawyer engaged in dishonesty, deceit, and misrepresentations would not even have to have been undergoing the job interview to be the Attorney General of the United States, but if it helps to put flesh on the bones of the hypothetical to think I was talking the whole time about the current U.S. Attorney General then, well, have at it.

Well, of course, they can. Or at least that is the conceit I’m going to stick to in order to write this post about a lawyer’s obligation to talk to their client about mistakes and make it seem topical and culturally relevant.

By now, unless you live a very, very cloistered life you’ve at least heard about the unprecedented and crazy ending to this year’s Oscars. Many of you, like me, were watching it as the event unfolded with Bonnie and Clyde as the presenters for the Best Picture award to end the night, Clyde opening the envelope, noticing something wasn’t right, being reluctant to say anything, and then showing to Bonnie… who then blurted out La La Land. After that all of the folks associated with that film, made their way up to the stage and one of them began giving an acceptance speech.

Meanwhile, in the background on stage, people associated with the broadcast in some fashion are disseminating information somewhat frantically and, quickly, it falls upon one of the members of the La La Land team — incredibly graciously — to speak out and let the people responsible for the film Moonlight, that they have actually won Best Picture and not the film that was announced. It is then stated out loud by one of the La La Land contingent that this is not a joke and the card reflecting Moonlight as the Best Picture winner is revealed.

As the Moonlight folks make their way to the stage, Clyde then proceeds to explain what had happened, that he had noticed something was wrong, wasn’t trying to be funny, but then when he showed to Bonnie, Bonnie announced La La Land as the winner of Best Picture.

The folks on behalf of Moonlight then did get to make an acceptance speech and then the host of the program, Jimmy Kimmel, said words to the effect that “he knew he’d screw this show up” and that they wouldn’t have to invite him back.

While it was a pretty atrocious moment for all involved, it made for really amazing television. We have all now learned through media reports and from its own statement to the press that the most culpable in the creation of the mistake were folks with the accounting firm which tabulates the votes, keeps the results confidential, and distributes the votes. We’ve also now learned that a two-envelope system that actually makes some pretty good logistical sense with all the “stage right” and “stage left” of the theater created an entirely unnecessary risk in terms of handing over a wrong envelope.

But, and here I go with the conceit, this incredibly high-profile event also teaches several great lessons about mistakes that anyone can take to heart, including lawyers — ways to be more likely to avoid mistakes, ways to deal with mistakes once made, and lessons not limited to being about mistakes — but before laying those lessons out, it is important to stress something about when a client is negatively impacted by a lawyer’s mistake.

Under the most reasonable reading of the rules of ethics, a lawyer in any jurisdiction that has a rule analogous to ABA Model Rule 1.4 has an ethical obligation — when a mistake of real significance has been made by the lawyer in a matter –to communicate what has transpired to the client. Lawyers who don’t realize the ethical obligation though can have self-interested reasons for promptly telling a client about a mistake — to establish a clear time-frame for a statute of limitations on any claim against the lawyer by a client to begin running. This is a particularly prudent course to take in a jurisdiction like Tennessee where there is a relatively-short statutory period and where precedent establishes that the time for a suit is not tolled merely because the lawyer continues to represent the client. Thus, in addition to being a requirement of the rules, a lawyer who has committed an error in the handling of the case could most certainly see her way to figuring out that communicating about it quickly to the client, particularly if a simultaneous reasonable plan for correction can be communicated as well, is the right thing to do from a purely personal, selfish standpoint.

The lessons for lawyers? I think there are, at least, six of them that can be learned from Sunday night.

One. How to acknowledge a mistake: The accounting firm did it exactly the right way – complete candor, no hedging, and with a true sense of contrition. Here was the first statement made early the morning after the Oscars:

“We sincerely apologize to ‘Moonlight,’ ‘La La Land,’ Warren Beatty, Faye Dunaway, and Oscar viewers for the error that was made during the award announcement for best picture. The presenters had mistakenly been given the wrong category envelope and when discovered, was immediately corrected. We are currently investigating how this could have happened, and deeply regret that this occurred.

“We appreciate the grace with which the nominees, the Academy, ABC, and Jimmy Kimmel handled the situation.”

In subsequent media communications explaining the two-envelope procedure and who was where and did what, the United States Chairman of the accounting firm has continued to give accounts that are straight-forward and apologetic without attempting to deflect any blame. (Lawyers should remember though that you are going to need to make sure you have the client’s permission to speak publicly if that becomes necessary about your mistake because of the constraints of client confidentiality under Rule 1.6.)

Two. Don’t be the guy publicly throwing someone under the bus: Clyde. The whole “let me further interrupt these poor people from getting to have their moment by making sure everyone knows that as between me and Bonnie, Bonnie deserves the blame” is a bad look.

Three. Make sure you’ve actually made a mistake before saying you screwed up: It is particularly important for lawyers not to do what Jimmy Kimmel did and start taking responsibility for an error if you truly weren’t involved. Kimmel was surely trying to be gracious in the situation, but lawyers can be quick to describe things they’ve done in an overly critical way — and if they do so publicly or hastily in an email — those words can come back to haunt in a deposition even if the self-castigation was unwarranted.

Four. Trust your gut instincts: Clyde’s gut was actually correct. He was smart enough to know that “Emma Stone” is not the name of a movie, but he didn’t trust his instinct enough to make more control of the situation than he did by saying out loud that he had been given the wrong envelope. Had he done that, so much of this could have been avoided.

Five. Think before you act: Looking at you Bonnie.

Six. How to be more likely to avoid mistakes in the first place? Pay attention – the job of an attorney is important.This lesson comes about as the pieces have been better put together and it appears that the particular employee of the accounting firm that handed over the wrong envelope had pretty closely in time before that screw up been taking a photo of Emma Stone after she won Best Picture. And posting it to his Twitter. A Tweet which he subsequently deleted, but which others got a screen capture of and saved so it can still be viewed on the Internet.

So (finally) I’ve made myself read a bit more into the DC situation — that for many people is now ancient history but was news to me — about what seems like something that definitely got some play in the news but ought to be a more nationally discussed scandal. The weird penchant that DC Bar Counsel has displayed in recent years of going after not just lawyer whistleblowers but lawyers who provide advice and counsel to such lawyers.

When I started down this path originally, it was in connection with noting the discipline that was imposed against Adrianna Koeck over her sharing of certain documents she took with her upon leaving her position as in-house counsel for GE and sharing them with the media. I’ve now had the chance to track down and read the admonition issued against Koeck’s former professor – Robert Blakey — and the recommended findings/charges against Koeck’s lawyer – Lynne Bernabei. Having done so, I’m still left shaking my head and thinking the priorities demonstrated are bananas.

In her position with GE, Koeck served “as the interface between legal issues happening in Latin America, Brazil, Argentina, Chile…and the broader businesses spread across the globe….

[snip]

When Koeck joined [GE] in 2006, Koeck’s supervisor … brief her about [an investigation involving questions regarding value added tax issues in Brazil] and gave her the file concerning the matter. Resolving these discrepancies [the VAT issues] became one of the “big issues” on Koeck’s plate….

In mid-November 2006, after eleven months of her working for GE… Human Resources advised Koeck that [her supervisor] did not want her to either stay with the company or move to another GE business.

Koeck was to be discharged at a November 29, 2006 meeting scheduled with a GE Human Resource employee, but immediately before that meeting, Koeck emailed the GE corporate Ombudsman… claiming, among other things, that she was being retaliated against “for participating in and reporting illegal activity engaged in by [GE] personnel.” She alleged that, in the course of her compliance investigations, she had discovered tax fraud that GE had been perpetrating in Brazil. She claimed that she was being terminated for raising concerns about the fraud to her supervisors.

[snip]

In late August 2007, Koeck sought the legal advice of her former Notre Dame Law School professor, G. Robert Blakey. Koeck provided Blakey with some of the confidential documents that she had copied from her GE computer. Blakey advised Koeck, “that the documents and information she had were not covered by the attorney-client relationship, because they fell within the crime/fraud exception.”

[snip]

Blakey confined his advice to Koeck to disclosures she would make to protect herself against potential criminal liability, and he recommended that she retain an additional attorney with expertise in employment law and whistleblower complaints. Blakely gave Koeck the names of two firms, one of which was Bernabei & Wachtel, PLLC.

[snip]

On November 27, 2007, Koeck formally retained Bernabei’s firm to handle the SOX matter before the Department of Labor.

[snip]

After Koeck retained Bernabei on November 27, 2007, she and Blakey met and agreed that Koeck should inform the press about GE’s activities in Brazil. Beginning in December 2007, Bernabei spoke with Koeck about having a press strategy and talking to the press.

[snip]

At some point in the fall of 2007, David Cay Johnston, a New York Times reporter at the time, received a telephone call from Blakey who asked if Johnson “might be interested in material about a long-running series of felonies committed by General Electric in another country.” Thereafter, Johnson received “hundreds of pages of documents” from Blakey or Koeck. Subsequently in January 2008, Johnston interviewed Koeck about the alleged tax fraud in Brazil and she provided additional documents in her possession regarding GE’s activities there.

Now as to Koeck and Bernabei, an interesting wrinkle learned from reading the source documents is that because the SOX proceedings were before the Department of Labor, the disciplinary body looked to the ABA Model Rules to apply to some extent, but entirely ignored any evaluation of Model Rule 3.6 on trial publicity that would appear, arguably, to permit disclosure of aspects of the proceedings to the media. In my earlier post, I had noted that DC does not have a trial publicity rule that extends as far as the Model Rule, but this wrinkle, to me, further undermines the outcome in these matters.

But it is the details of Professor Blakey’s situation though that are laid out in his admonition letter – that bar counsel was aware of and took into account and yet still thought discipline was warranted that most astound me and leave me sticking to my guns about this all being bananas:

Ms. Koeck told you that she was concerned that GE had not and was not taking any action to stop the alleged ongoing fraud and that she was afraid that she might be personally liable for the activity because Brazilian law holds individuals, and not corporations, liable for tax fraud and criminal activity. Ms. Koeck also said that she knew of money-laundering activities and described instances in which GE employees in South America had been murdered. Based on your conversations with her, you were under the mistaken impression that Ms. Koeck was residing in Brazil. You believed that she faced possible criminal liability if she did not report the alleged illegal and fraudulent activity. You also believed that her physical safety was in danger.

[snip]

In advising Ms. Koeck to provide information and copies of GE’s documents to Mr. Johnston, you had in mind the evidentiary crime-fraud exception to the attorney-client privilege, but you did not give adequate consideration to the terms of Rule 1.6 of the Rules of Professional Conduct.

Now setting aside the fact that D.C.’s Rule 1.6(d) does provide a lawyer with an exception to permit disclosure that would at least have been arguably available to cover Koeck’s circumstances, they are managing to discipline a very distinguished lawyer on a basis of saying he assisted another lawyer in violating her ethical obligations rather than attempt to prove that the lawyer’s allegedly “bad advice” rose to a level of incompetence to justify discipline under Rule 1.1.

As a lawyer who represents lawyers, I find that to be a really quite scary turn of events.

My view on the whole situation isn’t exactly made any better after tooling around a bit on the Web regarding the disciplinary counsel involved in pursuing this matter, Hamilton P. Fox, III. Mr. Fox appears to be the same gentleman who was on the wrong side of the exercise of abusive and over-the-top enforcement powers recently as well. You can read about the saga involved in his arrest and his wife’s detention stemming from Mr. Fox being parked in a place he shouldn’t have been parked in. and the D.C. police appearing to significantly overreact to the situation presented here. Assuming he is the same person, and I admit it is possible that there are two separate Hamilton P. Fox, III in D.C., but assuming he’s the same person and I think I’m on solid ground about that as other people have laid out before, you’d think the experience he went through would make him more sympathetic to wielding power irresponsibly and trying to only target those who deserve punishment, but apparently not.

As a lawyer who represents lawyers, I’ll try for now just to look on the bright side of things that I don’t practice in the District of Columbia instead of dwelling on just how chilling the actions of D.C. Bar Counsel might be on lawyers who do.

2016 was a year marked with quite a number of unexpected (at least to me) developments. 2017 likely will have its share of unexpected events as well.

To wrap up the year, I wanted to use what little platform I have to pursue something that is both driven by blatant self-interest and is in the interests of the overall “good.” That something is to muse in hopefully a relatively pithy fashion on my general philosophy about why even lawyers need other lawyers.

I truly cannot remember if the way I tend to state this is in such a fashion that it is cribbed from one or more other lawyers or if it has something of an nearly-original genesis but whether it should be footnoted to avoid plagiarism or written freely without worry of attribution, I think it is compellingly accurate as a philosophy:

Lawyers need lawyers because lawyers are great at solving other people’s problems, but horrible at solving their own problems.

I’ve encountered quite a few excellent lawyers who, in aid of their own personal situations, have done and said things they would never do or say if they were acting on behalf of a client other than themselves and who, if you could stop them and pose to them what they were doing as a hypothetical act of a client of theirs, would not merely counsel a client other than themselves against such behavior but would likely woodshed any of their clients who were foolhardy enough to so act.

I suspect you can think of an example or two you have come across as well.

And, if the philosophical concept is true, and even excellent lawyers — lawyers who are great at solving other people’s problems — need lawyers., then the need for lawyers is even greater when the lawyer in question is not so great even at solving other people’s problems.

There are any number of ways that these thoughts could have been prompted today. For the record, they were prompted by this story.

(And, I am not the only one to have written such a piece in the past and you can find lots of such articles online and in paper format, but I have written in the past about the fact that lawyers can be surprised to find that they have coverage to be reimbursed for hiring attorneys to handle things other than malpractice cases under their malpractice policies. My piece in that oeuvre can be found here.)

So, it seems like I am begging to differ all over the place during the last week or so, but here comes another instance.

About a month ago, the Tennessee Supreme Court granted permission to appeal in a legal malpractice case, Story v. Bunstein, in which the plaintiff(s) suit against their lawyer was dismissed based on expiration of the one-year statute of limitations. In Tennessee, our case law has long established – unlike some other jurisdictions – that the statute is not tolled for continuous representation.

There’s a law firm in Nashville – primarily focused on criminal defense matters – that operates a blog called the “Hot List” that weighs in with thoughts and predictions about what the Court will do on cases granted. Here’s a link on what they have to say about this particular legal malpractice suit.

If you look at the link, you’ll see that they’ve offered this prediction on this case:

Ben thinks the Supreme Court will reverse. It would be bad policy to require clients to have to sue their lawyers while the underlying case is ongoing.

From the way that prediction is worded, it is unclear to me whether Ben has managed to read the Tennessee Supreme Court’s opinion in Carvell v. Bottoms. Carvell dates back to 1995 and was cited in the Bunstein decision. Via Carvell our state’s highest court already established its public policy decision that it is not bad policy to require clients to do exactly that. Instead, the Court explained that the correct answer is to file the suit and then seek to have it stayed until the underlying matter is resolved. In the words of former Chief Justice Drowota:

Although we conclude that the rule [judicial estoppel] is not technically applicable, we nevertheless realize that having to maintain inconsistent positions in different lawsuits is somewhat anomalous. Therefore, we agree with the New Jersey Supreme Court that clients can avoid the “discomfort of maintaining inconsistent positions,” see Grunwald v. Bronkesh, 131 N.J. 483, 621 A.2d 459, 467 (1993), by filing a malpractice action against the attorney and requesting that the trial court stay that action until the underlying proceedings are concluded. See e.g., Grunwald, 621 A.2d at 466-67; Knight v. Furlow, 553 A.2d 1232, 1236 (D.C.App.1989). In this manner clients can, without conflict, continue to assert their interests in the underlying lawsuit, while preserving any malpractice action they may have against their attorneys.

Admittedly, being a lawyer who defends other lawyers in legal malpractice cases and I have successfully used Carvell to get cases dismissed for my clients on the basis of expiration of the statute of limitations, I have some bias on how this should play out. In light of this well-established policy for more than two decades, I have to beg to differ on this one. In addition to the ability to follow the procedure laid out in Carvell, clients also can negotiate tolling agreements if the lawyer doesn’t want the suit to be filed, stayed, and hanging over her head. So, I don’t see the need to change policy at this point and while I’m not in the court predictions game would hope that the Court does not overturn Carvell.

And, as a completely unsolicited writing tip, if my assumption is incorrect and Ben has read Carvell then it would be advisable to say something more like “Ben thinks the Supreme Court will reverse. Ben thinks the Court will decide to change its view on the existing policy requiring filing suit and then having the litigation stayed and will instead announce a belief that clients shouldn’t have to sue their lawyers while the underlying case is ongoing.”

Even if Ben had written it that way, I’d still beg to differ on the outcome, but at least if written in that fashion the prediction would read like the author knew exactly what they were weighing in on in rather than running the risk of sounding like they didn’t realize the scope of existing precedent.

(N.B. This will be my last post before the holidays so, whatever you celebrate, I hope it brings you great joy!)

So, the D.C. Bar has come out with a far-reaching, sort of two-part ethics opinion addressing lawyers and social media usage. Opinion 370 (Part 1) can be grabbed here. Opinion 371 (Part 2) from here. Opinion 370 has lots of really good parts, but much of the publicity it has received to date revolves around something it throws out for lawyers to bear in mind and be wary of that hasn’t really been said by opinion-writing entities before.

Here’s how the ABA Journal online headline treated it – “beware” of “social media statements on legal issues.” Other aspects of the reporting I have seen described it as warning lawyers who offer opinions online of the potential for creating an “issue” conflict. There’s a reason, I think, this topic hasn’t been explored much by other opinion-writing bodies: it is a relatively silly and irresponsible take. Regardless, given the minimal treatment of the issue that the opinion offers, even if you think there were merit to flagging the issue for consideration, the portion of Opinion 370 that “addresses” it still would be better left on the cutting room floor.

Here, in its entirety, is the analysis of this issue as a risk for lawyers from the DC Opinion:

Caution should be exercised when stating positions on issues, as those stated positions could be adverse to an interest of a client, thus inadvertently creating a conflict. Rule 1.7(b)(4) states that an attorney shall not represent a client with respect to a matter if “the lawyer’s professional judgment on behalf of the client will be or reasonably may be adversely affected by . . . the lawyer’s own financial, business, property or personal interests,” unless the conflict is resolved in accordance with Rule 1.7(c). Content of social media posts made by attorneys may contain evidence of such conflicts.

Now, to help get your bearings straight if you aren’t a D.C. lawyer, D.C.’s Rule 1.7(b)(4) is different from what is set out in the ABA Model Rules and, thus, different from what we have here in Tennessee (for example) in the closest equivalent rule, RPC 1.7(a)(2). Our RPC 1.7(a)(2), just like the ABA Model, establishes a conflict of interest — albeit a potentially consentable one — where “there is a significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.”

In a (stop-me-if-you-heard-this-one-before) well-done story by Samson Habte with the ABA/BNA Lawyers’ Manual on Professional Conduct,some quotes are gathered from folks pointing out that the concept of an “issue” or “positional” conflict of interest necessarily involves or requires taking contrasting positions in front of one or more tribunals and, thus, a lawyer’s public statements of opinion about a legal question couldn’t create a positional or issue conflict.

In Tennessee, for example, we address issue/positional conflicts of interests in Paragraph [24] of our Comment to RPC 1.7. While incapable of being that kind of conflict, supporters of the D.C. Opinion warning might argue that it is still a risky endeavor to express opinions about a legal issue because the lawyer might then have a “personal interest” in how something is resolved that would materially limit the ability to represent a client.

To me, that kind of approach to the topic not only misunderstands what it means to be a lawyer representing a client but also what the rules say in a variety of places it means to be a lawyer at all. I’ll stick for now to just the Tennessee rules though I’d venture a guess that similar principals are laid out in D.C.’s rules.

In the Preamble to our Rules, in the second paragraph, we lay out a list of things that a “lawyer” is and, included among them, is “a public citizen having special responsibility for the quality of justice.” In the seventh paragraph of the Preamble to the Rules we say:

As a public citizen, a lawyer should seek improvement of the law, access to the legal system, the administration of justice, and the quality of service rendered by the legal profession. As a member of a learned profession, a lawyer should cultivate knowledge of the law beyond its use for clients, employ that knowledge in reform of the law; and work to strengthen legal education.

Further, we have a rule, RPC 6.4, patterned after ABA Model Rule 6.4, that specifically makes the point that lawyers can ethically undertake service in connection with entities that seek to reform the law or its administration even though such efforts could detrimentally affect the interests of a client of the lawyer. If a Tennessee lawyer can engage in organized efforts to reform the law even though those efforts, if successful, might detrimentally affect the interests of one of the lawyer’s clients, then absolutely they can make public statements about what the law should be without violating the ethics rules.

Now, might a client decide not to hire a lawyer who has already indicated a personal belief contrary to the client’s position. Sure, and they’d have every right to make that decision. But they might also make a different decision and think that, if the lawyer is willing to take on and argue their position despite past public statements to the contrary, it would make their arguments stronger.

To my knowledge. opinion-writing entities have never warned lawyers about writing learned treatises or books on legal subjects or discouraged lawyers from speaking at Continuing Legal Education events or seminars (which are these days often videotaped and archived) because of some notion that expressing an opinion about a legal issue could create an ethical conflict for the lawyer. Seems to me that the same “logic” that drove the almost offhand reference by the DC Bar in the Ethics Opinion could be applied to tell lawyers to “beware” of such other activities as well.

One thing I hope everyone could agree upon though is: if you are going to go to the trouble of injecting this issue into what is otherwise an extremely lengthy ethics opinion, then you should have done a better job of tackling the issue comprehensively rather than simply throwing out a half-baked statement that could serve to dissuade lawyers from speaking out.